Weeding Out the Politics of Pot

Guess which one of the following remarks -- all made by Supreme Court justices during this week’s arguments about California’s medical marijuana law -- was uttered by the Supreme from the Golden State:

* “Go to the FDA and say, ‘Take this off the dangerous drugs list.... Medicine by regulation is better than medicine by referendum.’ ”

* “Seems to me the sensible assumption is they’re going to get it on the street.”

* “If we rule for the respondents in this case, do you think the street price of marijuana would go up or down?”

Dude! Right the first time! It’s Quote No. 3, from Justice Anthony Kennedy, the Sacramento homey who owes marijuana a big confirmation vote of thanks: He made it to the court because the nominee before him got dumped after admitting he’d smoked marijuana.

This is California’s second date with the Supreme Court on the subject of Cannabis Rx. The first time, after California led 10 other states in writing itself a prescription for medical marijuana, the court unanimously folded its black-robed arms and said nope to medicinal dope when it was handed out at “cannabis clubs.”

The matter is back for seconds because more medicinal marijuanists were busted, barely a month after the Sept. 11 terrorist attacks, by John Ashcroft’s Justice Department, which evidently had already swiftly defeated terrorism and had some free time on its hands. The California women whose case was argued this week grew their own to counter ailments that could keep an entire medical school occupied.

The legalities at issue in the case are grounded in interstate commerce, but let’s not kid ourselves, this case is really before the Supreme Court for one reason: Because, in spite of Quote No. 2 from Justice Stephen Breyer, that regulation is better than referendum, no politician and no regulator answerable to a politician has the guts to stick up publicly for the medical merits of marijuana. Even if it ends world hunger, makes peace between Palestinians and Israelis and sends the Cubs to the World Series, no politician will go there; the kiss-of-death risk of an endorsement by the Cheech and Chong Bong Club is too terrifying.

There are even legal precedents available for its use as medicine, if the pols weren’t too wimpy to use them. Under a mid-1970s court order, the federal government grew medical-grade marijuana in Oxford, Miss., supplying legal dope to a few aging and ailing patients. In California in the 1920s, marijuana was generally banned under the state Poison Act, but druggists kept it and doctors prescribed it legally for pain relief.

If the Puritan politicians suspect that some patient might be having a good time, one toke at a time, I offer this rebuttal: It is not fun. How do I know this? Because I have had glaucoma since I was in my teens, and some years ago, after every prescription drug failed and before I resorted to surgery, my doctor let me know obliquely that marijuana could do me good. I dutifully inhaled almost every night. Taking drag after drag under doctor’s order was a drag.

What is fun is watching how the cheerleaders for states’ rights sort themselves out when the state’s right in question makes their skin crawl. Ashcroft, the lame-duck attorney general, would conceivably be fine with it if you were dying of cancer in Oregon and killed yourself with an assault weapon, but he would lock you and your doctor up if the two of you tried, under Oregon state law, to find you a more peaceful and painless exit from life.

On the other side, you’re never likely to see medical marijuana on the ballot in Alabama, Louisiana or Mississippi, but at least they see that it’s in their interest to side with states’-rights medical marijuana this time, because next time they’ll need a clear route to make their own arguments -- like, say, when Alabama is called to account for the bit in its constitution about school segregation, the part its voters refused to get rid of last month.

Fifty, 60 years after states’ rights meant the right to segregate and discriminate, I think we’re overdue for a Blue States Rights Revolt. It was Chief Justice William Rehnquist who 10 years ago made it clear that states’ rights were the next civil rights; it’s time to hold him to his word. He wasn’t on the bench to hear the arguments. He is out ailing after being treated for thyroid cancer. He is also one of three of the justices to hail from states whose voters like the notion of medical marijuana, and one of several justices with medical problems.

Angel Raich, the Oakland woman whose case is one of those before the court, had Rehnquist on her mind this week at least as much as her case may be on his. The other day, on the steps outside the Supreme Court, she wondered aloud whether his suffering might “soften his heart about the issue.” He might even find, she suggested, “that cannabis would help him a lot.”